Trump vic­tory en­sures con­ser­va­tive ma­jor­ity

Start­ing with Scalia’s seat, he can re­shape high court

Baltimore Sun - - ELECTION 2016 - By David G. Sav­age

WASH­ING­TON — Don­ald Trump’s pres­i­den­tial vic­tory pre­serves the Supreme Court’s nar­row con­ser­va­tive ma­jor­ity by clear­ing the way for the new pres­i­dent to choose a ju­rist next year to fill the seat of the late Jus­tice An­tonin Scalia.

And with Repub­li­cans main­tain­ing con­trol of the Se­nate, Trump will have a free hand in se­lect­ing some­one with strong con­ser­va­tive cre­den­tials, con­fi­dent his nom­i­nee will be con­firmed.

The election dashes the hopes of lib­er­als, who lost their best op­por­tu­nity in more than 40 years to cre­ate a ma­jor­ity on the high court.

It also pro­vided a val­i­da­tion of sorts for the ob­struc­tion strat­egy of Se­nate Ma­jor­ity Leader Mitch McCon­nell, R-Ky., and other Repub­li­cans, who re­fused for nearly nine months to con­sider Pres­i­dent Barack Obama’s nom­i­nee to fill Scalia’s seat, Mer­rick Gar­land, chief judge of the U.S. Court of Ap­peals for the Dis­trict of Columbia Cir­cuit.

The fu­ture of the Supreme Court’s ide­o­log­i­cal bal­ance proved to be a crit­i­cal fac­tor for many Repub­li­can vot­ers. In exit polls, about 1 in 5 vot­ers said the Supreme Court ap­point­ments were “the most im­por­tant fac­tor” in their de­ci­sion, and those vot­ers fa­vored Trump by a 57 per­cent to 40 per­cent mar­gin, ac­cord­ing to ABC News.

Now, the court’s ide­o­log­i­cal bal­ance should re­main largely as it has been for the Don­ald Trump has the op­por­tu­nity to re­shape the Supreme Court, start­ing with An­tonin Scalia’s suc­ces­sor. past decade, with Jus­tice An­thony Kennedy hold­ing the de­cid­ing vote in the court’s big­gest cases.

Kennedy gen­er­ally leans to the right on is­sues such as cam­paign spend­ing, crim­i­nal law, the death penalty, re­li­gion, busi­ness reg­u­la­tion and gun rights. But he has joined the court’s four lib­er­als to up­hold gay rights and to pro­tect mi­nori­ties from hous­ing dis­crim­i­na­tion.

Trump’s nom­i­nee to re­place Scalia is not likely to trig­ger an im­me­di­ate shift on abor­tion. In June, Kennedy joined with the lib­er­als to strike down a Texas law that would have forced the clos­ing of most of the state’s abor­tion clin­ics, sig­nal­ing the Roe vs. Wade de­ci­sion and the right to abor­tion re­tains a ma­jor­ity, at least for now.

But go­ing for­ward, GOP con­trol of the White House and the Se­nate means the court could shift strongly to the right in the next four years if Jus­tices Ruth Bader Gins­burg, 83, Kennedy, 80, or Stephen Breyer, 78, were to leave the court.

“Fill­ing the Scalia seat is prob­a­bly a wash. But the odds are very high that in four or eight years, Pres­i­dent Trump will have other va­can­cies to fill, and that will be a dif­fer­ent story,” said John Mal­colm, a le­gal an­a­lyst at the Her­itage Foun­da­tion, a con­ser­va­tive think tank.

If a Pres­i­dent Trump were to re­place Gins­burg or Breyer, it would give the court a dom­i­nant con­ser­va­tive bloc with six Repub­li­can ap­pointees and no need to rely on Kennedy for some is­sues, no­tably abor­tion and gay rights. Trump said in one de­bate that he would ap­point jus­tices who would over­turn Roe vs. Wade.

Trump’s nom­i­nees also are likely to be strong sup­port­ers of the Se­cond Amend­ment and its right to bear arms. If so, the court could stand as a road­block against city or state gun reg­u­la­tions, in­clud­ing mea­sures that make it hard for gun own­ers to ob­tain con­cealed carry per­mits.

Lib­er­als are wor­ried about what lies ahead. “Longer term, there are real con­cerns about whether a Supreme Court with two or three Trump-nom­i­nated jus­tices would cut back on pro­tec­tions for im­por­tant fun­da­men­tal rights and lib­er­ties, es­pe­cially the right of women to mean­ing­fully ac­cess abor­tion,” said Elizabeth Wy­dra, pres­i­dent of the Con­sti­tu­tional Ac­count­abil­ity Cen­ter. “We could see a court more will­ing to look out for cor­po­rate in­ter­ests at the ex­pense of con­sumers and work­ers or to break with the guar­an­tees of equal­ity for LGBTQ Amer­i­cans.”


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